The Committee against Torture, established under Article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 24 November 2004,

Having concluded its consideration of complaint No. 207/2002, submitted to the
Committee against Torture by Mr. Dragan Dimitrijevic under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,

Having taken into account all information made available to it by the complainant,

Adopts the following:

Decision of the Committee against Torture
under article 22 of the Convention

1. The complainant is Mr. Dragan Dimitrijevic, a Serbian citizen of Romani origin
born on 7 March 1977. He claims to have been the victim of violations by Serbia
and Montenegro of articles 2, para.1 read in conjunction with article 1; article
16, para.1; and articles 12, 13 and 14 taken alone and/or together with article
16, para.1 of the Convention. He is represented by the non-governmental organizations
Humanitarian Law Center, based in Belgrade, and European Roma Rights Center,
based in Budapest.

The facts as submitted by the complainant

2.1 The complainant was arrested on 27 October 1999 at around 11 a.m. at his
home in Kragujevac, Serbia, in connection with the investigation of a crime.
He was taken to the local police station located in Svetozara Markovica Street.
Upon arrival he was handcuffed to a radiator and beaten up by several police
officers, some of whom the complainant knew by their first names or their nicknames.
The police officers kicked and punched him all over his body while insulting
his ethnic origins and cursing his "gypsy mother". One of the officers
struck the complainant with a big metal bar. Some time later the officers unfastened
the complainant from the radiator and handcuffed him to a bicycle. Then they
continued punching and beating him with their nightsticks and the metal bar.
At one point the complainant began bleeding from his ears, despite which the
beating continued until he was released at about 4.30 p.m.

2.2 As a result of the ill-treatment the author had to stay in bed for several
days. He sustained injuries on both arms and legs, an open wound on the back
of his head and numerous injuries all over his back. For several days following
the incident he bled from his left ear and his eyes and lips remained swollen.
Fearing reprisals by the police the complainant did not go to hospital for treatment.
Consequently, there is no official medical certificate documenting the injuries
referred to above. The complainant, however, has provided the Committee with
written statements from his mother, his sister and a cousin indicating that
the he was in good health when he was arrested and severely injured at the time
of his release.

2.3 On 31 January 2000, the complainant, through counsel, filed a criminal complaint
with the Kragujevac Municipal Public Prosecutor's Office alleging that he had
been the victim of the crimes of slight bodily harm and civil injury, as provided
for under articles 54(2) and 66 of the Serbian Criminal Code respectively. As
there was no response for almost six months following the submission of the
complaint, the complainant wrote a letter to the Public Prosecutor's Office
on 26 July 2000 requesting an update on the status of the case and invoking,
in particular, article 12 of the Convention. By the time the complainant submitted
his case to the Committee, i.e. more than 23 months after the submission of
the criminal complaint, no response had been received from the Public Prosecutor.

2.4 The complainant claims that he has exhausted available domestic criminal
remedies and refers to international jurisprudence according to which only a
criminal remedy can be considered effective and sufficient in addressing violations
of the kind at issue in the instant case. He also refers to the relevant provisions
of the State Party's Criminal Procedure Code (CPC) setting forth the obligation
of the Public Prosecutor to undertake measures necessary for the investigation
of crimes and the identification of the alleged perpetrators.

2.5 Furthermore, under article 153 (1) of the CPC, if the public prosecutor
decides that there is no basis for the institution of a formal judicial investigation
he must inform the complainant, who can then exercise his prerogative to take
over the prosecution in the capacity of a "private prosecutor". However,
the CPC sets no time limit in which the public prosecutor must decide whether
or not to request a formal judicial investigation. In the absence of such decision
the victim cannot take over the prosecution of the case on his own behalf. Prosecutorial
inaction following a complaint filed by the victim therefore amounts to an insurmountable
impediment in the exercise of the victim's right to act as a private prosecutor
and to have his case heard before a court. Finally, even if there were a legal
possibility for the victim himself to file for a formal judicial investigation
because of the inaction of the public prosecutor, this would in effect be unfeasible
if, as in the instant case, the police and the public prosecutor had failed
to identify all of the alleged perpetrators beforehand. Article 158 (3) of the
CPC provides that the person against whom a formal judicial investigation is
requested must be identified by name, address and other relevant personal data.
A contrario, such a request cannot be filed if the alleged perpetrator is unknown.

The complaint

3.1 The complainant claims that the acts described constitute a violation of
several provisions of the Convention, in particular articles 2, para.1 read
in conjunction with article 1; article 16, para.1; and articles 12, 13 and 14
taken alone and/or together with article 16, para.1. Such acts were perpetrated
with a discriminatory motive and for the purpose of extracting a confession
or otherwise intimidating and/or punishing him. He also submits that his allegations
should be interpreted in the context of the serious human rights situation in
the State party and, in particular, the systematic police brutality to which
Roma and others are subjected to. In evaluating his claim the Committee should
take into account his Romani ethnicity and the fact that his membership in a
historically disadvantaged minority group renders him particularly vulnerable
to degrading treatment. All else being equal, a given level of physical abuse
is more likely to constitute "degrading or inhuman treatment or punishment"
when motivated by racial animus and/or coupled with racial epithets than when
racial considerations are absent.

3.2 With respect to article 12 read alone or taken together with article 16,
para. 1 of the Convention, the complainant claims that the State party's authorities
failed to conduct a prompt, impartial and comprehensive investigation into the
incident at issue, notwithstanding ample evidence that an act of torture and/or
cruel, inhuman and degrading treatment or punishment had been committed. Public
prosecutors seldom institute criminal proceedings against police officers accused
of violence and/or misconduct even though such cases are in the category of
those that are officially prosecuted by the State. When the victims themselves
or NGOs on their behalf file complaints against police misconduct, public prosecutors
as a rule fail to initiate proceedings. They generally restrict themselves to
requesting information from the police authorities and, when none is forthcoming,
they take no further action. Judicial dilatoriness in proceedings involving
police brutality often results in the expiration of the time period envisaged
by law for the prosecution of the case. Notwithstanding the proclaimed principle
of the independence of the judiciary, practice makes clear that public prosecutor's
offices do not operate on this principle and that both they and the courts are
not independent of the agencies and offices of the Ministry of Internal Affairs.
This is especially true with respect to incidents of police misconduct.

3.3 With respect to article 13 of the Convention the complainant submits that
the right to complain implies not just a legal possibility to do so but also
the right to an effective remedy for the harm suffered. In view of the fact
that he has received no redress for the violations at issue he concludes that
his rights under article 13 taken alone and/or in conjunction with article 16,
para.1 of the Convention have been violated.

3.4 The complainant further claims that his rights under article 14 taken alone
and/or in conjunction with article 16, para. 1, of the Convention have been
violated. By failing to provide him with a criminal remedy the State Party has
barred him from obtaining "fair and adequate compensation" in a civil
lawsuit, "including the means for as full a rehabilitation as possible."
Pursuant to domestic law, the complainant had the possibility of seeking compensation
by way of two different procedures: 1) criminal proceedings, under article 103
of the Criminal Procedure Code, that should have been instituted on the basis
of his criminal complaint, or 2) in a civil action for damages under articles
154 and 200 of the Law on Obligations. Since no formal criminal proceedings
followed as a result of his complaint with the Public Prosecutor, the first
avenue remained closed to him. As regards the second avenue, the author filed
no civil action for compensation given that it is standard practice of the State
party's courts to suspend civil cases for damages arising out of criminal offences
until prior completion of the respective criminal proceedings. Had the complainant
decided to sue for damages immediately following the incident, he would have
faced another insurmountable procedural impediment caused by the inaction of
the public prosecutor office. Namely, articles 186 and 106 of the Civil Procedure
Code stipulate that both parties to a civil action, the plaintiff and the respondent,
must be identified by name, address and other relevant personal data. Since
the complainant to date remains unaware of this information and as it was exactly
the duty of the public prosecutor's office to establish these facts, instituting
a civil action for compensation would have clearly been procedurally impossible
and thus rejected by the civil court.

State party's submissions on the admissibility and the merits of the complaint

4. The complaint with its accompanying documents was transmitted to the State
party on 17 April 2002. Since the State party did not respond to the Committee's
request, under rule 109 of the rules of procedure, to submit information and
observations in respect of the admissibility and merits of the complaint within
six months, a reminder was addressed to it on 12 December 2002. On 20 October
2003, the State party informed the Committee that the Ministry on Human and
Minority Rights was still in the process of collecting data from the relevant
authorities with a view to responding on the merits of the complaint. Such response,
however, has not been received by the Committee.

Issues and proceedings before the Committee

5.1 The Committee notes the State party's failure to provide information with
regard to the admissibility or merits of the complaint. In the circumstances,
the Committee, acting in accordance with rule 109, paragraph 7 of its rules
of procedure, is obliged to consider the admissibility and the merits of the
complaint in the light of the available information, due weight being given
to the complainant's allegations to the extent that they have been sufficiently
substantiated.

5.2 Before considering any claims contained in a complaint, the Committee against
Torture must decide whether or not the complaint is admissible under article
22 of the Convention. In the present case the Committee has ascertained, as
it is required to do under article 22, paragraph 5 (a), of the Convention, that
the same matter has not been and is not being examined under another procedure
of international investigation or settlement. With respect to the exhaustion
of domestic remedies, the Committee took note of the information provided by
the complainant about the criminal complaint which he filed with the public
prosecutor. The Committee considers that the insurmountable procedural impediment
faced by the complainant as a result of the inaction of the competent authorities
rendered the application of a remedy that may bring effective relief to the
complainant highly unlikely. In the absence of pertinent information from the
State party the Committee concludes that the domestic proceedings, if any, have
been unreasonably prolonged. With reference to article 22, paragraph 4 of the
Convention and rule 107 of the Committee's rules of procedure the Committee
finds no other obstacle to the admissibility of the complaint. Accordingly,
it declares the complaint admissible and proceeds to its examination on the
merits.

5.3 The complainant alleges violations by the State party of article 2, para.1
in connection with article 1, and of article 16, para.1 of the Convention. The
Committee notes in this respect the description made by the complainant of the
treatment he was subjected to while in detention, which can be characterized
as severe pain or suffering intentionally inflicted by public officials in the
context of the investigation of a crime, and the written testimonies of witnesses
to his arrest and release that the complainant has provided. The Committee also
notes that the State party has not contested the facts as presented by the complainant,
which took place more than five years ago. In the circumstances the Committee
concludes that due weight must be given to the complainant's allegations and
that the facts, as submitted, constitute torture within the meaning of article
1 of the Convention.

5.4 Concerning the alleged violation of articles 12 and 13 of the Convention,
the Committee notes that the public prosecutor never informed the complainant
about whether an investigation was being or had been conducted after the criminal
complaint was filed on 31 January 2000. It also notes that the failure to inform
the complainant of the results of such investigation, if any, effectively prevented
him from pursuing "private prosecution" of his case before a judge.
In these circumstances the Committee considers that the State party has failed
to comply with its obligation, under article 12 of the Convention, to carry
out a prompt and impartial investigation wherever there is reasonable ground
to believe that an act of torture has been committed. The State party also failed
to comply with its obligation, under article 13, to ensure the complainant's
right to complain and to have his case promptly and impartially examined by
the competent authorities.

5.5 As for the alleged violation of article 14 of the Convention the Committee
notes the complainant's allegations that the absence of criminal proceedings
deprived him of the possibility of filing a civil suit for compensation. In
view of the fact that the State party has not contested this allegation and
given the passage of time since the complainant initiated legal proceedings
at the domestic level, the Committee concludes that the State party has also
violated its obligations under article 14 of the Convention in the present case.

.

6. The Committee, acting under article 22, paragraph 7, of the Convention, is
of the view that the facts before it disclose a violation of articles 2, paragraph
1 in connection with article 1; 12;,13; and 14 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.

7. The Committee urges the State party to conduct a proper investigation into
the facts alleged by the complainant and, in accordance with rule 112, paragraph
5, of its rules of procedure, to inform it, within 90 days from the date of
the transmittal of this decision, of the steps taken in response to the views
expressed above.